Meera Ajit Doshi vs Chanda Achyut Vaze

S.C. Gupte, J—The Plaintiff seeks probate of the last will and testament of her deceased mother, late Sumati Vasant Joglekar, as an executrix of the will.

It is the Plaintiff''s case that the deceased had made a last will and testament dated 11 August 2003. The deceased died in Mumbai on or about 31 October 2009, leaving her surviving as her heirs and next-of-kin according to the Hindu Succession Act, 1956 only her three daughters, including the Plaintiff, the Defendant and their younger sister, Madhushri Dhiren Khot. The Plaintiff is an executrix of the will, the other executrix being the Defendant. The Plaintiff filed the testamentary petition for probate of the will on 14 June 2012. Citations were issued on 7 August 2012. The Defendant filed a caveat. The petition was thereupon converted into a suit. In her affidavit in support of the caveat, the Defendant has contested the genuineness, legality and validity of the will. It is the Defendant''s case that the purported will is contrary to the known wish and desire expressed by the deceased during her life time and is the result of undue influence, coercion and undue pressure on the deceased at the hands of the Plaintiff and the younger sister Madhushri.

The following issues were framed at the trial of the suit:

"Issues:

Whether the last will and testament of Mrs. Sumati Vasant Joglekar dated 11.08.2003 was validly executed by her?

Whether the said will was executed as a result of undue influence and/or coercion or undue pressure at the hands of the plaintiff or the sister of the parties, one Madhushri?

What relief, if any, is the plaintiff entitled to?"

The Plaintiff examined herself as well as her maternal uncle, Nandkumar Yashwant Gupte, who was also an attesting witness in support of her case. Documentary evidence was admitted on record during the examination of the witnesses. The Defendant chose not to lead any oral evidence, but relied upon the evidence on record.

Issues No. 1 and 2 can be taken up together, since they essentially deal with the execution of the will - both the factum and the legality of the execution. In this case, the Defendant challenges both. The factum of execution being denied, it must be proved according to law. It must be shown that the will was actually signed by the testator in the presence of two witnesses who attested it in the presence of the testator and of each other. The legality would include the following elements : (i) whether the testator was at the relevant time in a sound disposing state of mind; (ii) whether there was lack of free consent, or in other words, was the execution vitiated by any circumstances which invalidate a free consent. If there are any suspicious circumstances about either of these two elements, it is for the propounder of the will to explain them, so that the Court could accept the will as genuinely executed by the testator.

With these prefatory remarks, let us examine the facts of our case so as to rule on the factum and legality of the execution. The execution of the will has been deposed to by the attesting witness, Nandkumar Yashwant Gupte (PW-2), who is not only a close relation of the deceased (being her cousin brother), but also an advocate who prepared the will on the instructions of the deceased testator. PW-2 has deposed that he was present with his son, Advait Nandkumar Gupte; in their presence, the deceased testatrix signed the will at the foot of the will in English language and character; thereafter both he and Advait, at her request and in her presence and in the presence of each other, put their signatures as witnesses on the will. Apart from minor inconsistencies to be found in the affidavit of PW-2 as attesting witnesses annexed to the petition, the Defendant contests the veracity of his evidence on the ground of his alleged bias and failing memory. Learned Counsel for the Defendant submits that whereas in the affidavit of attesting witness, PW-2 has deposed that the other witness wrote his name as ''A. Gupte'', the will shows that the name is written as ''Advait Gupte''; whereas in the former affidavit, PW-2 mentions that the date and month at the last page of the will, viz. 11th day of August 2003, as having been written by the testatrix, the will propounded shows only the month "11" in handwriting, and the words "day of August Two Thousand and Three" are in print; whereas para 5 of the former affidavit mentions the initials as having been affixed by the testatrix, there are no initials on the will; whereas para 7 of the former affidavit mentions that the scoring, additions, and inhibition in the will did exist before the execution of the will, the will does not contain any scoring or interlineation. Apart from these inconsistencies, learned Counsel for the Defendant also draws my attention to purported suppression in the testimony of PW-2 - that he suppressed having met the Plaintiff in connection with the probate petition which, according to the Defendant, has been brought out in the cross-examination of PW-2 (pages 139 to 143 of the Notes of Evidence). Learned Counsel also comments upon the alleged bias of PW- 2 in favour of the Plaintiff and against the Defendant(referred to on pages 144, 147, 148, 151 to 155, 157, 158, 160, 169 and 170 of the Notes of Evidence), and the purportedly admitted failing memory of PW-2 (Pg. 143 of the Notes of Evidence). The witness, PW-2, has been extensively cross-examined on all these aspects. The so called discrepancies are relatively minor. They at the most indicate that when PW-2 prepared his first affidavit (which is annexed to the petition), he was rather careless. The witness is a senior practising advocate of repute. He in fact has truthfully admitted in the cross-examination that the mentioning of the date, month and year (in place of only date) and initials, as referred to above, was wrong, but not false. He admits not having taken proper care at the time of signing of the first affidavit. The witness has fared well in the cross-examination and has been truthful and forthright. There are no inconsistencies in his examination-in-chief (by way of affidavit and oral deposition before the Court Commissioner) and his cross- examination. The so called reference to ''A. Gupte'' in the place of ''Advait Gupte'' can also be easily explained. The witness has written his name as ''Advait Gupte'', but signed as ''A.N. Gupte'' which can be easily mistaken as ''A. Gupte''. The witness is, at the relevant place, deposing about both the name and signature and in that context refers to name and signature written as ''A. Gupte.'' The minor discrepancies referred to above have, thus, been adequately explained. There is nothing wrong with the witness not remembering the Plaintiff''s visit to his office referred to in Question No. 90 of his cross-examination. It does not suggest a general failure of memory. There is no substance in the objection to his testimony on account of his alleged bias towards the Plaintiff and against the Defendant. No evidence is led in that behalf by the Defendant. Nothing has been brought out in the cross-examination of PW-2 either in support of such case. The other objection to the execution of the will is on the ground that there was no proper attestation of the same. It is submitted that the second attesting witness admittedly never knew the deceased or met her at any time prior to the execution of the will and it was nobody''s case that the deceased was identified to him. This aspect was dealt with in the cross-examination of PW-2, who is the father of the second attesting witness, Advait. PW-2 admitted that Advait never met the deceased before, but asserted that he knew who the deceased was as a person. The deceased was a famous film actress and PW-2 said that Advait had seen her movies telecast on T.V. This is clearly believable. Considering the facts that the deceased was a cousin of his father (though he had not personally met her before), a film actress whose movies were shown on T.V. and his father took him to witness the execution of her will, it cannot be believed that he did not know who the executant was when he witnessed the execution of the will. None of the objections to the execution, or the proof thereof, accordingly, has merit. It is also pertinent to note that the signature or handwriting on the will is not contested by the Defendant. There is no pleading (apart from a general plea of denial of signature) or evidence that the purported signature of the deceased executrix is not hers. The fact that the deceased put her signature to the writing, which purports to be her will, in the presence of two witnesses, who signed as witnesses in her presence and in the presence of each other, is thus proved.

Let us now consider the aspect of legality and genuineness of the will. Let us consider if there are any suspicious circumstances surrounding the execution of the will undermining its validity and if there are, whether the propounder successfully explains them. There is no case urged in the pleadings or at the bar that the testatrix was not in a sound disposing state of mind. The only case is that there was undue influence, coercion and undue pressure brought to bear on the testatrix by the Plaintiff and this vitiates the free consent of the testatrix. In support, it is alleged that the purported will is contrary to the known wish and desire expressed by the deceased during her lifetime. This last fact is by itself neither here nor there. It may at best be a supporting circumstance for a case of coercion or undue influence. But even this fact is clearly not proved. There is no positive evidence brought on record by the Defendant that the deceased really desired something other than what she provided for in the will. The Defendant has been unable to bring out any such intent even in the cross-examination of the Plaintiff''s witnesses.

Before we consider the so called suspicious circumstances alleged by the Defendant, it is necessary to note that there is nothing unnatural about the bequests made in the will. It is also important to note that there is no particular advantage conferred upon the Plaintiff in the will. The deceased testatrix had three daughters - the Plaintiff, the Defendant and Madhushri. She gave all her investments, which were described to be something which her property mainly consisted of, to the three daughters equally. She also devised her flat (the only immovable property of hers) to be sold and sale proceeds to be divided equally between her daughters. The deceased even judiciously distributed her ornaments and jewellery between her daughters, nieces, wife of nephew, etc. She even thought of her domestic servant and directed her daughters to make an appropriate provision for her. Lastly, the deceased appointed both the Plaintiff and the Defendant as co-executrices of her will. There is nothing suspicious about the bequests per se. The suspicious circumstances according to learned Counsel for the Defendant, are these: (i) the will surfaced in January 2010; (ii) there is no explanation why it was handed over to the Plaintiff; (iii) there is a false statement in the petition as to the place of death of the deceased; (iv) the will is not initialed at all the pages or beside the handwritten blanks, though it is prepared by and executed before, an advocate, who says that as a matter of practice, he makes his clients generally initial all pages of executed documents; (v) the draft of the will or the deceased''s instructions not having been retained by the advocate; (vi) the failure of PW-2 to produce the correspondence and computer disc; (vii) the advocate, PW-2, having only acted for the deceased for preparation of her will and not in any other matter; and (viii) there are several staple marks on the original will, which suggest a possible replacement or substitution of page/s. (These are in addition to some other circumstances surrounding the execution, which are dealt with above.) By themselves none of these circumstances raises any strong suspicion about the genuineness of the will or makes out any case of undue influence or coercion. But that apart, all of them have been adequately explained in the evidence of the Plaintiff. The Plaintiff has explained in her evidence that after her mother''s (the testatrix''s) demise on 31 October 2009, the advocate - PW-2 - called her up and told her that he was in possession of the will of the deceased. That is how the Plaintiff came to know about the will. PW-2 then couriered the will to the Plaintiff. (The Plaintiff has also deposed that she immediately communicated to the Defendant about the will after coming to know of it.) This version is also corroborated by the testimony of PW-2. He has deposed about having called the Plaintiff and told her about the will. The witness has also adequately explained why he informed only the Plaintiff about it and not the others (Answers to Q. 142 to 147 of the cross-examination). As for the place of death of the deceased, the Plaintiff has said in her evidence that the deceased passed away at the residence of the Plaintiff. There is no false statement in the petition about the address of the deceased at the time of death. The deceased always resided at 72, Anup Juhu Dhara Complex. That was her address at the time of her death. It has so come in evidence. Actual place of death is an altogether different aspect. What is communicated in the petition (and also reflected in the death certificate) is the address of the deceased at the time of her death and not the place of death. There is no false statement and no suspicious circumstance. As for want of the deceased''s initials on the will, the witness - PW-2 - has adequately explained the matter in his cross-examination (See answers to Q. Nos. 225, 226, 230, 231 to 239, 249, 250, 291 and 292). The witness, who is an advocate, has basically deposed that it was his practice to insist on signing of a will only at one place, i.e. at the bottom, by the maker thereof, and he did not ask the deceased in the present case to initial any page or filled-in blank, but asked her to sign only at the end of the will. This is clearly acceptable and explains why the will is not initialed. There is no unexplained suspicious circumstance here. As far as the matter of preservation of the deceased''s instructions, draft will, etc. is concerned, the witness- PW-2 - has deposed to the facts that in view of change of his premises, he was unable to trace the papers, which may have been misplaced. So also, he has explained that the soft copy of the will, stored in his computer which was damaged during a fire, was not any longer available. The explanation seems to be proper and can be accepted. There was nothing peculiar or strange about the deceased approaching PW-2 only for the purpose of preparation of her will, when she was regularly consulting M/s. Vadke & Dabke as chartered accountants and advocates. PW-2 was an advocate of repute, related to the deceased and there was nothing unusual about the deceased asking him to prepare a will, witness its execution and retain the same in safe custody till her death. Lastly, about the staple marks on the will. There are some staple marks on the will. PW-2 is asked about them. The questions and answers in this behalf are noted in Q.352 to 360 of the Notes of evidence. What emerges from the original document and this cross-examination is that there may be some staple marks, but there is nothing to show that any page/s has/have been replaced or substituted. The witness has deposed that there is no change of paper after the will was handed over by him. Indeed there does not appear to be any.

Learned Counsel for the Defendant also tried to suggest that there appears to be another will of 2005, which is suppressed by the Plaintiff. There is no such plea taken in the affidavit in support of the caveat and there is absolutely no evidence led in that behalf. The submission is merely required to be stated to be rejected.

Learned Counsel for the Defendant relied upon judgments of the Supreme Court in the cases of, H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 : (1959) 1 SCR 426 Supp , Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, AIR 1977 SC 74 : (1977) 1 SCC 369 : (1977) 1 SCR 925 , Gurdial Kaur and others Vs. Kartar Kaur and Others, (1998) 3 AD 603 : AIR 1998 SC 2861 : (1998) 3 JT 37 : (1998) 119 PLR 524 : (1998) 2 SCALE 649 : (1998) 4 SCC 384 : (1998) 2 SCR 486 : (1998) 1 UJ 677 : (1998) AIRSCW 1695 : (1998) 3 Supreme 504 and Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 SC 1684 : (1995) 7 JT 177 : (1995) 111 PLR 594 : (1995) 3 SCALE 455 : (1995) 4 SCC 459 : (1995) 2 UJ 177 in support of his arguments on suspicious circumstances and the onus of proof on the propounder in the face of such circumstances. These judgments lay down that the question as to whether an instrument produced before the Court is the last will of the testator, who is no longer alive, is a solemn question; though there are no hard and fast rules for appreciation of evidence in relation to the proof of a will in particular, the general rule is that the propounder has to prove the due and valid execution of the will and if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the suspicions from the mind of the Court by cogent and satisfactory evidence; in sum, the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but that the will was the product of the free volition of the executant, who had voluntarily executed the same after knowing and understanding the contents of the will. As I have noted above, there are hardly any substantial circumstances of suspicion surrounding the execution in the present case and such purported suspicious circumstances as there are, are adequately explained by cogent and satisfactory evidence. The tests laid down in the judgments noted above are clearly satisfied. The will propounded by the Plaintiff is validly executed and there is no circumstance such as undue influence, coercion or undue pressure which vitiates such execution. Issue Nos. 1 and 2 are accordingly answered in the affirmative.

The will having been duly proved, probate must be granted to the Plaintiff as executrix of the will.

The suit is accordingly decreed and probate granted of the will dated 11 August 2003, a copy whereof is annexed as Exhibit "B" to the petition. Drawn up decree is dispensed with.

On the application of learned Counsel for the Defendant, the order is stayed for a period of three weeks from today.